INTRODUCTION
The Bharatiya Nyaya Sanhita (BNS), or the Indian Penal Code, is a landmark legislation that
has replaced the archaic Indian Penal Code (IPC) of 1860. Enacted in 2023, the BNS signifies
a significant step towards modernizing India's criminal justice system. It aims to address the
evolving needs of a rapidly changing society, ensuring that the law remains relevant and
effective in combating crime.
The BNS is a comprehensive code that covers a wide range of offenses, from traditional
crimes like murder and theft to contemporary challenges such as cybercrime and terrorism. It
has been carefully crafted to balance the rights of the accused with the need to protect
society. One of the key objectives of the BNS is to simplify the legal language and make it
more accessible to the common person. By using clear and concise language, the BNS aims
to enhance transparency and understanding of the law.
A notable feature of the BNS is its emphasis on restorative justice. It recognizes the
importance of rehabilitation and seeks to provide opportunities for offenders to reform and
reintegrate into society. The code also incorporates provisions for community service as a
form of punishment, promoting a more holistic approach to criminal justice.
In comparison to the IPC, the BNS introduces several significant changes. One of the most
notable changes is the removal of the offense of sedition. This controversial provision, which
was often misused to stifle dissent, has been replaced with a new offense that criminalizes
acts endangering the sovereignty, unity, and integrity of India. The BNS also introduces
stricter penalties for certain offenses, particularly those related to economic crimes and
terrorism.
Another significant difference between the BNS and the IPC lies in the approach to bail. The
BNS seeks to streamline the bail process and reduce the likelihood of unnecessary
incarceration. It provides for the presumption of bail in certain non-bailable offenses,
ensuring that individuals are not detained without just cause.
While the BNS represents a significant step forward, it is important to acknowledge that it is
not without its critics. Some argue that the code has not gone far enough in addressing certain
issues, such as police brutality and the rights of marginalized communities. Others have
raised concerns about the potential for misuse of certain provisions, particularly those related
to national security.
Despite these criticisms, the BNS remains a crucial piece of legislation that has the potential
to transform India's criminal justice system. By modernizing the law and emphasizing
restorative justice, the BNS aims to create a fairer and more equitable society.
As India continues to evolve, it is essential to have a legal framework that can adapt to the
changing needs of the nation. The BNS is a step in the right direction, but it is important to
remain vigilant and ensure that the law is used to uphold justice, not to oppress.
Hurt
In everyday language, "hurt" refers to causing physical injury or pain to someone. However,
under BNS, it is defined more specifically in Section 114: "Whoever causes bodily pain,
disease, or infirmity to any person is said to cause hurt."
The key components of this definition are:
Bodily Pain: Any act that results in physical discomfort, apart from minor harm that would
not usually lead to complaints, is considered hurt. Examples include poking someone with a
sharp object like a needle, punching a person, or pulling a woman's hair. The duration of the
pain is irrelevant.
Infirmity refers to a situation where an organ cannot function normally, whether temporarily
or permanently. It also extends to mental conditions like hysteria or intense fear.
Disease:- If a person transmits a specific disease to another individual, they
could be held liable for causing harm. However, judicial rulings regarding the
transmission of sexually transmitted diseases (STDs) have shown inconsistency.
1. In R. v. Clarence1, A lower court convicted a husband for transmitting a
disease to his wife. However, the Court for Crown Cases, by a majority of nine
to four, overturned the conviction. The court ruled that a man infecting his
wife with gonorrhea through sexual intercourse, despite knowing his condition
and her lack of awareness, does not constitute grievous bodily harm or assault,
even if she would not have consented to intercourse had she been aware of his
condition.
2. In Raka v. Emperor2, The Bombay High Court held that a prostitute who
transmitted syphilis to the complainant through sexual intercourse was liable
under Section 269 of the Indian Penal Code (IPC) for spreading infection, rather
than for causing hurt, because the time gap between the act and the onset of
the disease was too distant to invoke Sections 319 and 321 of the IPC. In
contrast, an individual who infected a 13-year-old girl with a venereal disease
after convincing her, unaware of his condition, to have intercourse, was found
guilty of indecent assault.
1
(1888) 22 QBD 23 (42-43) (HL).
2
1887 ILR 11 Bom 59.
3. Infirmity:- infirmity means a temporary mental impairment, hysteria or terror. In
Jashanmal Jhamatmal v. Brahmanand Sarupanand3, The accused landlord,
intending to intimidate the complainant’s wife and force the couple to leave the
property, made a loud "Haoo" sound and pointed a pistol at her. The shock
caused the complainant's wife to faint and suffer from severe illness for an
extended period. The court held that this act was enough to induce a temporary
mental disturbance or hysteria, leading to a mental infirmity in the woman,
thereby falling under Section 319 of the Indian Penal Code (IPC).
4. An act that is not intended to cause death or serious injury may still be considered as causing
hurt, even if it leads to death. If there is no intent to cause death or injury likely to result in
death, and no knowledge that the injury could be fatal, the accused may be charged with hurt if
the injury is not severe. In a case from 1883, the accused struck a man on the head with a
bamboo yoke, and although the man later died mainly due to excessive opium given by his
friends to ease the pain, the accused was found guilty under this provision.
In Bysagoo Noshyo4, A, in response to a serious and sudden provocation from B,
kicked B in the abdomen. B had an enlarged spleen, which was punctured by the
kick, leading to B's death. Since A had no intent to cause death nor any
awareness that the injury could be fatal, A was held accountable for causing
simple hurt under Sections 319 and 321 of the Indian Penal Code (IPC).
In re Marana Goundan5, A demanded ten rupees from B, which B owed him. When B promised
to pay later, A kicked him twice in the abdomen. B fell unconscious and later died. A was found guilty of
voluntarily causing hurt.
In Beshor Bewa6 , The accused woman kicked her 10-year-old daughter in the
back and slapped her twice on the face, which ultimately led to the child's death.
She was convicted only for causing hurt.
The framers of the code have noted that in many instances, offenses that qualify
as hurt may also qualify as assault. However, there are cases where this may not
apply. For instance, if A places food laced with poison on B's desk, and B later
eats it, causing harm, this would not constitute assault. If the accused is unaware
of any special condition of the deceased and the death occurs due to the harm
3
A.I.R. 1944 Sind. 19.
4
(1867) 8 WR (Cr) 29.
5
A.I.R. 1971 Goa, Daman and Diu 18.
6
(1872) 18 WR (Cr.) 29.
caused, the accused would be guilty of only hurt. For example, in the case of
Marana Goundan (AIR 1941), when the accused kicked a person who died due to
a diseased spleen, the accused was convicted only of causing hurt. Physical
contact is not always required—thus, when an accused mixed dhatura in food
that led to poisoning, he was found guilty of causing hurt.
Grievous Hurt
Cases of severe hurt are classified under grievous hurt. The authors of the code
observed that it would be very difficult to draw a line between hurt and grievous
hurt but it was important to draw a line even if it is not perfect so as to punish the
cases which are clearly more than hurt.
Section 116- Grievous Hurt- The following kinds of hurt are designated as
“grievous”
First- Emasculation.
Secondly- Permanent privation of the sight of either eye.
Thirdly- Permanent privation of the hearing of either ear.
Fourthly- Privation of any member or joint.
Fifthly- Destruction or permanent impairing of the powers of any member or
joint.
Sixthly- Permanent disfiguration of the head or face.
Seventhly- Fracture or dislocation of a bone or tooth.
Eighthly- Any hurt which endangers life or which causes the victim to be in
severe bodily pain or unable to follow his ordinary pursuits for a period of 20
days.
The section is explained in the following lines.
Firstly- ‘Emasculation’- the term ‘emasculation’ means the depriving a person of
masculine vigor, castration. Injury to the scrotum would render a man impotent. A
person emasculating himself cannot be convicted under this section. A person
causing hurt to himself does not come within the purview of this section.
Secondly- Losing eye sight-where as many as twenty four persons lost their eye-
sight permanently in consequence of arrack distributed by the accused after mixing
methyl alcohol in it, the hurt has to be regarded as grievous hurt because of what
has been stated in the clause 2.
Thirdly- It deprives a man of his sense of hearing. Injury to the tympanum or
auditory nerve or by thrusting something into the ear which causes deafness.
Fourthly- The term ‘member’ means an organ or a limb being part of man capable
of performing a distinct function. It includes, nose, mouth, hands, feet, phalanges
etc.
Fifthly- The use of limbs and joints of body are essential to the discharge of the
normal functions of the body. Their deprivation causes lifelong crippling and
makes the person defenseless and miserable.
Sixthly- The word ‘disfigure’ means to cause some external injuries which detracts
from his personal appearance but does not weaken him. In Gangaram v. State of
Rajasthan7 the bridge of the nose was cut, as the injury was inflicted by a sharp –
edged weapon, it was held that the act amounted to permanent disfiguration within
the meaning of this clause and hence the injury was grievous.
Seventhly- It is not necessary that a bone should be cut through and, the cut should
be up to the medulla. If there is a break by cutting or splintering of the bone or
there is a rupture or fissure in it, it would amount to a fracture but the doctor must
document the dimensions of fracture and duration/age correlation with age of
injury. Dislocation means displacement. Mere looseness of teeth will not amount to
dislocation. It has to be proved that the tooth was originally not loose and that there
was fracture or dislocation by the injury. In Horilal8, the Supreme Court held that
ordinary fracture means breaking of a bone. A mere abrasion or cut that does not
go across the bone cannot be called a fracture of the bone9
7
1984 Cr LJ 180 NOC (Raj)
8
Horilal v. State of Uttar Pradesh, A.I.R. 1970 SC 1969
9
Parma, A.I.R. 1956, Raj 39.
Eighthly- Any hurt which endangers life or which causes the victim to be in severe
bodily pain or unable to follow his ordinary pursuits for a period of 20 days. A
wound may cause intense pain, prolonged disease or long lasting body injury but
does not fall under any of the seven clauses. A body injury/beating may not
mutilate the sufferer or fracture his bones but may be so harsh and painful may
cause even death. The eighth clause provides for such hurts. Under this, three
different clauses of hurt are included. These are:
Any hurt which endangers life.
Any hurt which causes the victim to be in severe bodily pain for a period of 20
days.
Any hurt which prevents the victim from following his ordinary pursuits for a
period of 20 days.
In Muhammad Rafi’s10 case, the accused, a mocha (cobbler) aged about 20 years
who inflicted an injury on the neck of the deceased with a penknife from behind,
was convicted by the Session’s Court under section 304(2) IPC for culpable
homicide to murder. The tragedy took place as a result of a quarrel between the two
boys over a loan of sum of fifteen paisa. The deceased was taken to the hospital
and died fifteen days later as a result of septic poisoning from the wound.
Allowing the appeal partially, the Lahore High Court held the accused liable under
section 322, IPC for causing death by grievous hurt as against culpable homicide
not amounting to murder as the circumstances did not justify a time a wound on the
neck is dangerous to life within the meaning of clause 8 of section 320, IPC.
In Mohindar Singh v. Emperor11, the accused on 22nd August, 1922 inflicted a
wound on Sarwan singh’s leg with a gandasa (a sharp – edged weapon) and gave
him blows with the back of the gandasa. Tetanus set in on 31st August, 1922 which
caused his death. Held, a wound in the leg was not in itself sufficiently dangerous
to bring the case within the meaning of grievous hurt when death due to tetanus
which supervened and resulted in the death of deceased.
Rational behind the section- The authors of the code observe: “we have found it
very difficult to draw a line between those bodily hurts which are serious and those
which are slight. To draw such a line between with perfect accuracy is absolutely
impossible; but it is far better that such a line should be drawn, though rudely, than
10
AIR 1930 Lah. 305
11
AIR 1925 Lah. 297.
that offences some of which approach in enormity to murder, while others are little
more than frolics which a good natures man would hardly recent, should be classed
together.
Some hurts which are not, like those kinds of hurt which are mentioned in
condition 1 to 7, distinguished by a broad and obvious line from slight hurts, may
nevertheless be most serious. A wound, for example, which neither emasculates the
sufferer, nor blinds him, nor destroys his hearing, nor deprives him of a member or
a joint, nor breaks his bones, nor dislocate them, may yet cause intense pain,
prolonged disease, lasting injury to constitution. It is evidently desirable that law
should make a distinction between such a wound, mad scratch which he headed by
just sticking plaster. A beating, again, which does not maim the sufferer or break
his bones may be so cruel as to bring him to point of death. Such a beating, it is
clear, ought not to be confounded with a bruise, which requires only to be bathed
with vinegar, and of which the traces disappear in a day.”
Scope- Like in Section 114, this section is also in the nature of definite clause.
Section 114 defines hurt, whereas section 116 defines ‘grievous hurt’.
To make out the offence of voluntarily causing grievous hurt, there must be some
specific hurt, voluntarily inflicted, and coming within the eight kinds enumerated
in this section. When a person forcibly thrust lathi into the rectum of another
person and causes serious injuries, he was held guilty of causing grievous hurt.
Injuries inflicted with the help of burning firewood cannot be considered as
grievous hurt as they do not come within the specific items of the injuries
mentioned in the definition of grievous hurt; nor do they endanger life.
Difference between hurt
and grievous hurt
Section 115- Voluntarily causing hurt –
(1) Whoever does any act with the intention of thereby causing hurt to any
person, or with the knowledge that he is likely thereby to cause hurt to any
person, and does thereby cause hurt to any person, is said "voluntarily to
cause hurt".
Section 117- Voluntarily causing grievous hurt –
(1) Whoever voluntarily causes hurt, if the hurt which he intends to cause or
knows himself to be likely to cause is grievous hurt, and if the hurt which
he causes is grievous hurt, is said "voluntarily to cause grievous hurt".
Explanation-A person is not said voluntarily to cause grievous hurt except when he
both causes grievous hurt and intends or knows himself to be likely to cause
grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or
knowing himself to be likely to cause grievous hurt of one kind, he actually causes
grievous hurt of another kind.
Illustration- A, intending or knowing himself to be likely permanently to disfigure
Z’s face, gives Z a below which does not permanently disfigure Z’s face, but which
cause Z to suffer severe bodily pain for the space of twenty days. A has voluntarily
caused grievous hurt.
The provisions of this section are very precise and incapable of misconstruction. A
magistrate dealing with charges of voluntarily causing grievous hurt must consider
and decide not only whether grievous hurt has been caused but if it has been caused
voluntarily or himself knew to be likely to cause grievous hurt. If he intended or
knew himself to be likely to cause only simple hurt, he cannot be convicted under
section 117(2). Section 115(1) and the explanation to section 117(1) make it clear
that either the ingredient of intention or that of knowledge, must be essentially
present in order to constitute the offence of hurt. Such a knowledge cab be inferred
from the part of body chosen for inflicting violence and the severity of that
violence as shown by the injuries on the body of the victim. The means by which
the injury was cause is not the true criterion. The answer really depends on the
nature of the injury caused and the manner in which the blows were administered,
whether by fists and slaps or by a weapon.
Difference between
punishments for “hurt” and
“grievous hurt”
Section 115(2) - Punishment for voluntarily causing hurt –
“Whoever, except in the case provided for by section 122(1), voluntarily
causes hurt, shall be punished with imprisonment of either description for a
term which may extend to one year, or with fine which may extend to one
thousand rupees, or with both.”
When the injury is not serious and there was no intention to cause death or
grievous hurt, nor did the accused have knowledge that it was likely to cause
grievous hurt or death, he is guilty of causing hurt and not death, even though death
is caused. Where the accused was one of the persons who assaulted the deceased
with a stick but there was no proof that the fatal blow or grievous injury was
caused by him, it was held, that the accused could only be convicted under section
323.12
Where evidence gave no clue as to on which part of the body of deceased the
accused has struck and prosecution also could not establish that the death of
deceased was caused by striking on some vital body, the accused could only be
convicted under section 115(2).
Section 118(1)- Voluntarily causing hurt by dangerous weapons or means-
Whoever, except in the case provided by section 122(1), voluntarily causes
hurt by means of any instrument for shooting, stabbing or cutting, or any
instrument which, used as a weapon of offence, is likely to cause death, or by
means of fire or any heated substance, or by means of any poison or any
corrosive substance, or by means of any poison or any corrosive substance, or
by means of any explosive substance which it is deleterious to the human body
to inhale, to swallow, or to receive into the blood, or by means of any animal,
shall be punished with imprisonment of either description for a term which
12
Babu Bika Jadhav 1996 Cri LJ 3952 (Bom)
may extend to three years, or with fine which may extend to twenty thousand
rupees, or with both.
Section 117(2)- Punishment for voluntarily causing grievous hurt – Whoever,
except in the case provided for by section 122(2), voluntarily causes grievous
hurt, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.
The prosecution may prove:
That the accused caused of any kind described in section 116.
That the accused intended, or knew that he was likely, to cause grievous hurt of any
kind described;
That the accused did so voluntarily.
Where there is no evidence to indicate as to which of the accused persons actually
caused grievous hurt none of them could be convicted under section 325. It may be
presumed that each of them intended to cause grievous hurt but such a presumption
alone is not sufficient to establish the offence of causing grievous hurt unless it is
further shown that the accused actually caused grievous hurt.13
The prosecution does not have to prove hurt under s.114 in order to prove
grievous hurt under s.116. Section 116 has very clearly laid down hurt which are to
be classified as grievous hurt and the eighthly clause is the only one in which some
interpretation and misuse is possible. The only catch in this section is the intention
part. Although intention can be inferred from the way in which the injury was
caused, but it takes a little more for the prosecution to prove grievous hurt because
the defense would always like to bring the injury from s.116 to s.114 because the
punishment and fine imposed is much less. An illustration in this respect can be
that if a person slaps another person and he falls down, hitting his head on the
ground which results in his death. This is only a case of simple hurt as the person
had only slapped and in ordinary course of things it would not lead to death. Now
let us consider another case, a boxer ‘punches’ a person in his stomach twice. The
person falls down, head hits the ground and he dies. In this case it is very clearly
evident from the circumstances that the intention was to cause to grievous hurt as
he was a ‘boxer’ and he ‘punched’ twice. It can safely inferred that the boxer
‘knew’ if not ‘intended’ that if he ‘punches’ a person twice in his stomach, it will
cause grievous hurt if not death.
13
Dipa AIR 1947 All 408.
Although there is a huge fundamental difference between the offence of hurt
and grievous hurt, but in practice, they are not that minutely followed in practical
application. Going by the language of the section 114, there is no clear cut
definition of hurt whereas on the contrary section 116 has defined which categories
of hurt fall under grievous hurt.
Bibliography
Basu’s INDIAN PENAL CODE, 10th ed., Ashok Law House, New
Delhi.
Dr. Hari Singh Gour, PENAL LAW OF INDIA, 11th ed., Vol. 3, Law
Publishers India Pvt. Ltd.
K.D. Gaur, CRIMINAL LAW: CASES AND MATERIALS, 6th ed.,
Lexis Nexis Butterworths.
K.I. Vibhute, P.S.A. Pillai’s CRIMINAL LAW, 10th ed., Lexis Nexis
Butterworths.
Faculty of Law, University of Delhi, CRIMINAL LAW-I, July 2011
